Stanley Kutler: What Kind of Supreme Court?
[Stanley Kutler is the author of “Judicial Power and Reconstruction” and other writings.]
The follies that are the Senate Judiciary Committee hearings on Supreme Court nominations returned with Solicitor General Elena Kagan in the hot seat, but with a new twist. Kagan had famously written that the lack of “meaningful discussion of legal issues” has given the confirmation process “an air of vacuity and farce,” resulting in a failure to properly evaluate nominees or educate the public on the court’s role.
Anticipating the hearings, Kagan deftly backpedaled, allowing that some questions “cannot be answered consistently with the responsible performance of the job the nominee hopes to undertake.” Kagan’s ambition is apparent, and we expected her to submit and play the game of non sequiturs, offering an avalanche of words, signifying precious little. The senators showed off; she returned the favor with proper humor and humility.
Kagan’s credentials and qualifications are clear. Yet ritual required senatorial posturing for the television cameras, while the audience can measure Kagan’s patience, or be outraged by her failure to meaningfully discuss the legal issues.
It is often assumed that the Senate hearings took on a different tone with the nominations of Robert Bork (1987) or Clarence Thomas (1991)—or even that of the current ranking Republican, Jeff Sessions, R-Ala., whose 1986 nomination to the U.S. District Court for the Southern District of Alabama was withdrawn after a negative committee vote. However, the Senate often rejected Supreme Court nominees in the 19th century and, as early as 1930, failed to confirm Judge John Parker, citing his support for segregation....
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The follies that are the Senate Judiciary Committee hearings on Supreme Court nominations returned with Solicitor General Elena Kagan in the hot seat, but with a new twist. Kagan had famously written that the lack of “meaningful discussion of legal issues” has given the confirmation process “an air of vacuity and farce,” resulting in a failure to properly evaluate nominees or educate the public on the court’s role.
Anticipating the hearings, Kagan deftly backpedaled, allowing that some questions “cannot be answered consistently with the responsible performance of the job the nominee hopes to undertake.” Kagan’s ambition is apparent, and we expected her to submit and play the game of non sequiturs, offering an avalanche of words, signifying precious little. The senators showed off; she returned the favor with proper humor and humility.
Kagan’s credentials and qualifications are clear. Yet ritual required senatorial posturing for the television cameras, while the audience can measure Kagan’s patience, or be outraged by her failure to meaningfully discuss the legal issues.
It is often assumed that the Senate hearings took on a different tone with the nominations of Robert Bork (1987) or Clarence Thomas (1991)—or even that of the current ranking Republican, Jeff Sessions, R-Ala., whose 1986 nomination to the U.S. District Court for the Southern District of Alabama was withdrawn after a negative committee vote. However, the Senate often rejected Supreme Court nominees in the 19th century and, as early as 1930, failed to confirm Judge John Parker, citing his support for segregation....